UNIVERSITAS INDONESIA

An Exploration Towards the Rational Economic Sanctioning

Submitted in partial fulfilment of the requirements of the Degree of Master

of Criminology

THEODORUS FREDERIK NICO AGUSTA

1706092281

FACULTY OF SOCIAL AND POLITICAL SCIENCES

DEPARTMENT OF CRIMINOLOGY

DEPOK

2018
 There is a increased tendency of global interest with regards to alternative
sanctions or punishments outside of those who are labelled as “cruel and unusual”
considering the huge amount of academic attention towards effectiveness of
incapacitation, rehabilitation and other forms of alternative sentencing such as
probation, community service and pre-adjudication diversions (Nagin, 2013).
Economic or monetary sanctions, despite its long history of its inclusion as one of
the earliest non-“cruel and unusual” punishments applicable to American, Chinese
and Saudi Arabian society, does not enjoy comparable policing and research
attention in most, if not all modern civilizations (Miethe and Lu, 2005). The
majority of fines imposed by the American court, for instance, are for traffic
offences and thus the role of monetary sanctions in the American court is
relatively minimal (Hillsman, 1990). This paper seeks to explore the potential of
monetary sanctions as a punishment method that is rationally justified and
effective from a criminological point of view. Three primary notions of attention
of this paper: (1) the comparative historical development of monetary sanctions
substantially based on the work of Miethe and Lu, (2) the deterrent efficacies of
monetary sanctions, and (3) examples of successful applications of monetary
sanction as the primary means of punishment.

Economic Sanctions of America, China, Saudi Arabia and Indonesia

The pioneering of economic sanctions as punishment in various cultures all

across the globe had noticeably been culturally early with most of them developed
it as a response on a civilizing lifestyle shift, from a feudal or nomadic society to
settling themselves in a specific area (Miethe and Lu, 2005). The idea of the
utilization of economic sanctions in the American colonies does not align with the
dominant philosophy of punishment that is primarily influenced by Christian
biblical values; monetary punishments used to only be viable as a restitution
option for non-homicide transgressions (see Numbers 35: 31). Being harsh and
punitive, the punishments stated in the Bible, by any means, are not to be taken
lightly as transgressions generally are punished with either corporal, physical pain
or death penalty. Accordingly, monetary sanctions are considered as an auxiliary

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punishment as mostly a ransom for the transgressor to ensure she/he attends the
court. The fundamental problem of the irrationality of economic sanctions is also
highlighted as early as the 18-th century, as quoted by Miethe and Lu, “…the rich
can elude justice by giving great bail …” which characterizes the inequality of
perceived severity of a punishment over different social and economic classes.

Similarly, the Chinese had utilized monetary sanctions in specific accounts

of criminal transgressions as early as the feudal period in mainland China, for
example as monetary restitution for accidental injury or death given to the close
relatives of a victim and as an alternative sanction for transgressions done by
juveniles or women. Eventually monetary sanction would alter its role as
restitution for the victims into a form of state income starting from Ming Dynasty
onwards. Ideologically, using economic sanctions as punishment does not
correspond with the dominant Confucian philosophy of which thoughts affect
deed; virtue is identified as the primary driving force of order in society in
Confucian ideas. Later on the transgressions of which economic sanctions are
applicable as means of punishment are expanded to include civil litigations,
administrative disputes, public defamations/slanders, breaches of contract,
migrant controls and computer-related crimes or cyber-activities (Miethe and Lu,
2005).

A relatively minor role of economic sanctions in Saudi Arabian history of

punishments is also observed on this particular country that adopts Islamic Sharia
Law. True to the Qur’an, in which economic sanctions are barely mentioned aside
from the practice of diyya, or “blood money”; compensation or restitution towards
the victim and her/his family members could be offered as a substitution for
punishment instead of the formally assigned corporal or even capital punishment,
if the victim’s party agreed. The socio-eco-political unique situation of Saudi
Arabia is, too, conceived as another factor that naturally hinders the application of
economic sanctions as major means of punishment; Saudi Arabia is a naturally
rich country with oil deposits, which allows it to be internationally more
independent compared to the other Islamic countries and thus, codify the
relatively “pure” version of the Islamic penal code into the state criminal penal
code.

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 Indonesia is in a uniquely intersectional position with regards to the three-
country comparison provided by Miethe and Lu in their book Punishment, of
which the original penal code is retained from a traditional colonial penal code
introduced by the Dutch Indies back in the 19th century while having significant
influences from its cultural circumstance as a Islam-dominated country with
heterogeneous citizens of various ethnicities (Mahy, 2013). Economic sanctions
are more likely prescribed as additional charges on top of serving their allocated
prison term or capital punishment, usually correlated to adjudications of traffic-
related, administrative and quite recently, on fraud and embezzlement offences
(e.g. corruption). The punitive nature as observed from the penal code of the
western world is strongly indicated and reflected in the Indonesian penal code,
even with all the revisions and amendments done by the government, with
implicit justifications for deterrent rationale and ideals.

Deterring Philosophy of Economic Sanctions as a Rationale of Effectiveness

Economic sanctions are undisputedly advantageous as means of punishing

criminal transgressors; several arguments have been proposed by different
scientists: it is (1) unmistakably punitive and deterrent, (2) capable of being
flexible in order to reflect both the seriousness of the crime and the available
resources of the transgressor, (3) may be coupled with other noncustodial
sentences when pursuing multiple sentencing goals, (4) relatively inexpensive to
administer, (5) does not require additional agencies and resources, (6) self-
sustaining, (7) avoids social labelling that is attached to corrective facilities (e.g.
prison), and (8) provides revenue for social purposes, like compensation and
restitution (Hillsman, 1990; Weatherburn and Moffatt, 2011). Before the
advantage kicks in however, the commencement and efficacy of economic
sanctions entirely relies on the capability of the criminal justice system in
possessing the ability to swiftly and consistently collect the fines, and to
transparently proceed with the administrative and due process with certainty all
across its subsystems, of which the deterrent effect of economic sanctions is
arguably diminished whenever the system fails to accordingly do so; for instance,

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an increase in strictness for threshold determination of a drunk driver’s high blood
alcohol content with regards of the severity of punishment received by her/him is
significantly effective in reducing repeated offending or recidivism (Hansen,
2015).

The issue of unfairness and bias is arguably considered as one of the key
challenges in advocating the rational economic sanctions. A monetary value that
is assigned as the sanction for committing a specific transgression, for example,
might be severely debilitating for a working class family’s purchasing power
while an employer class family rationally might not bat an eye when confronted
with the same nominal value. Moreover, while the number of researches regarding
special deterrence of economic sanctions is steadily increasing, any significant
correlation with general deterrence effect is, at best, weakly observed due to the
insufficient knowledge of the actual punishment associated with a specific
criminal act; the impact of perceived risk of apprehension to general deterrence is
more significant (Apel, 2013). Therefore, rationalizing economic sanctions will
never be as effective as intended without the accompaniment of thorough
preparations and improvements with regards on the criminal justice system and its
actors.

Looking Through the Western Europe Perspective of Rational Practices

Before starting off with the method utilized by the Western Europe countries,
a disclaimer is accordingly set: unequal distribution of income is strikingly
observed and majority of the criminals processed by the criminal justice system
originated from the lower end of the economic distribution (Townsend, 1979;
George and Lawson, 1980). The method of “day-fine” is designed in order to
introduce specific means into the charging of the economic sanctions. In order to
attain rationality in the application of the economic sanctioning scheme, the
sanction that is assigned to a specific criminal act is determined not only based on
the severity of the effect of the act committed, which will be translated into “day-
fine” units as a common standard in the uniform crime statistics, but also on the
income of the offender (Hillsman, 1990). Legal jurisprudence might be applicable

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for first half of the rationale, but not the latter, when considering that individual
situation and environment are unmistakably unique from one another.

Regional rulings are not restricted to be expanded in the “day-fine” scheme

in Germany, where individual courts might have specific jurisdictions and
regulations in both determining the exact number of “day-fine” units to be
imposed and precisely measuring the value of each unit. Culpability of each
offender is analysed and included in the calculation of the number of units
charged. With regards to maintaining transparency, the court is obligated by law
to publish the calculation of sanction determination including the number of units
and their value for each day-fine court, revealing the components of consequence
of each criminal act as the punishments (Hillsman, 1990).

Conclusion

Economic sanction is one of the many alternatives in punishment that are

penologically sound. It has been utilized ever since the dawn of early settlers all
across the globe, including America, China and the Middle East. Despite their
apparent tenderness and lenient penalizing element, researches have shown that
there are some deterrent merits in punishing transgressors by economic
impoverishment (Hillsman, 1990; Miethe and Lu, 2005; Weatherburn and
Moffatt, 2011; Apel, 2013). The more recent development of “day-fine” method
in West Europe attempted to tackle the issue of irrationality, discrepancy and
unequal effectiveness across different social classes in the society, and such
efforts have been noticeably more successful then their classical predecessor. The
change in criminal justice system focuses on methods to be more efficient in
resource management, to structure more consistent sanctioning decisions, and to
justly impose fines without unnecessarily penalizing regardless of its deterrent
capabilities.

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